Domesticating human rights norms in the United States: considering the role and obligations of the federal government as litigant.

Author:Kysel, Ian M.
Position:III. The Double Bind: Domestic Application of Non-Self Executing Human Rights Treaties in the United States B. Indirect Enforcement: Using Persuasive Authority to Ensure Compliance with International Law through VI. Conclusion, with footnotes, p. 1040-1070
  1. Indirect Enforcement: Using Persuasive Authority to Ensure Compliance with International Law

    That non-self-executing treaties do not create rules of decision binding courts in litigation does not mean that they cannot have any effect on the law or the development of law. Indeed, independent of any room for domestic enforcement left open by Medellin, there is broad support for the proposition that domestic law should be interpreted in such a way as to avoid violating U.S. international law obligations, including those imposed by non-self-executing treaties.

    Jurisprudential support for this view dates to another seminal Marshall opinion in the 1804 Charming Betsy case that lends its name to what is now a canon of statutory interpretation that requires that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." (102) As the American Law Institute's Restatement (Third) of Foreign Relations Law notes, the Charming Betsey canon has repeatedly been applied by the Supreme Court to treaty obligations. (103) Commentators have also noted that lower courts have applied the canon to ensure continued compliance with non-self-executing treaties and with the ICCPR in particular. (104)

    ALI's draft Restatement (Fourth) of Foreign Relations Law, like the Third Restatement before it, takes the same position with regard to avoiding conflicts with federal statutory law, (105) but arguably takes an even more expansive general view regarding the interaction between other forms of domestic law and treaty obligations. Although not finalized, it is a persuasive formulation of a legally available view of how non-self-executing treaties should be treated by the federal government in the wake of Medellin. Most notably, the current draft Restatement would not require any ambiguity in order to apply the canon:

    If a treaty or treaty provision is non-self-executing, a rule of decision that would satisfy the treaty obligation may be afforded by other existing or subsequently enacted domestic law.... Treaties are the supreme law of the land, and whether a treaty or a treaty provision is self-executing or non-self-executing does not affect the obligation and authority of the United States to ensure compliance with its treaty commitments as a matter of domestic and international law. (106) This is consistent with what some scholars have called "interpretive enforcement" of international law. (107) Similarly, the current draft Restatement (Fourth) takes the position that "the United States may ... discharge its treaty obligations through pre-existing law ... or executive action at the national, State, or local level." (108) Interpretive enforcement is arguably consistent with the otherwise restrictive treatment of treaty law in Medellin. (109) This interpretive approach might be termed an "enhanced Charming Betsy canon." It should be read to impose a domestic law obligation--arguably derived from the U.S. Constitution (110)--to avoid breach of all U.S. international law obligations, including those derived from non-self-executing treaties, and seeking in all cases a rule of decision that reconciles both. (111)

    In sum, as there is not significant jurisprudential support for the view that U.S. non-self-executing treaty obligations can be invoked by litigants to serve as a rule of decision in domestic litigation, the executive branch is thus limited in its ability to carry these treaty obligations into effect in a way that creates rules for the Courts. There is, however, robust support for the authority of litigants to invoke non-self-executing treaty obligations in order to promote interpretive enforcement of those obligations and promote U.S. law outcomes--and rules of decision for domestic courts--that avoid breach of U.S. international law obligations. The door is thus open for executive branch actions, including legal action brought to directly enforce U.S. constitutional or statutory law, to incorporate human rights law in this manner in order to avoid violating the normative obligations contained in ratified non-self-executing treaties, such as the ICCPR and the CERD.


    Parts II and III have illustrated an under-explored area of tension between international law and U.S. domestic law regarding U.S. enforcement of human rights treaty obligations. International human rights law makes clear that the United States has an obligation to incorporate the international treaties it has ratified into domestic law. U.S. domestic law, however, does not recognize ratified non-self-executing human rights treaties as binding, decisional, law in the context of litigation. Because the ICCPR and the CERD are non-self-executing, (112) they do not create rights that can be enforced directly in court, either by private litigants or the federal government. However, there is broad authority to support use of non-self-executing treaty obligations in parallel with domestic law to ensure enforcement of domestic law in a way that is consistent with United States treaty obligations. Part IV.A. considers the federal government's interest in promoting domestic compliance with international law in this manner when bringing actions to enforce protection of fundamental rights. Part IV.B. then suggests two strategic approaches the federal government should consider when invoking these non-self-executing international human rights treaties as persuasive authority in civil litigation concerning fundamental rights. It does so through two case studies illustrating how easily these treaties could be incorporated into U.S. federal government litigation.

  2. The Federal Interest in Consistent Protection of Fundamental Rights

    The U.S. federal government has a significant interest in incorporating non-self-executing human rights treaty obligations into domestic actions to protect fundamental rights. Doing so would satisfy U.S. interests and obligations in facilitating U.S compliance with international law by ensuring the development of domestic fundamental rights jurisprudence that is consistent with treaty law. (113) Indeed, as shown below, U.S. treaty-makers (both the President and the Senate) have explicitly identified domestic compliance with human rights law as an important interest of the United States. (114) Directly incorporating human rights law into domestic civil litigation as persuasive authority would also facilitate judicial and public education about U.S. international law obligations in a world of increasingly transnational legal obligations. (115)

    As demonstrated in Part II, the ICCPR and the CERD--subject to the U.S. reservations--create international law obligations for the United States. These international law obligations require that the United States take both general and specific measures to implement and ensure compliance with aspects of the conventions domestically as well as to ensure that all of the rights enumerated in each treaty are effectively protected for individuals subject to U.S. jurisdiction. While these obligations do not create an affirmative duty requiring that the United States bring civil actions to enforce treaty obligations in U.S. courts, to the extent that convention rights are protected by coextensive domestic Constitutional and statutory rights, the outcome of domestic fundamental rights cases and controversies is legally significant: any court decision can readily put the United States in breach of its treaty obligations. For these reasons, among others, the United States has a significant interest in considering the implications for U.S. obligations under non-self-executing treaties for any position taken in domestic litigation to which it is a party. Incorporating non-self-executing treaty obligations into legal arguments as persuasive authority supporting U.S. litigation positions thus stands to ensure normative consistency between domestic law and U.S. international law obligations and prevent a breach.

    The very manner that U.S. treaty-makers (both the executive branch and the Senate) have pursued ratification of major human rights treaties demonstrates support for ensuring domestic implementation and thus full and consistent compliance with U.S. international obligations under these treaties. In preparing human rights treaties for ratification, the President and Senate have been careful to highlight that U.S. law already generally complies with a given treaty, and that proposed "reservations, understandings and declarations" eliminate any areas of legal conflict. (116) One goal of the treaty-makers has thus been to ensure that, upon ratification, the United States would be in full compliance with its treaty obligations (that the conventions would essentially be "pre-implemented"). (117) The domestic process leading to U.S. ratification of the ICCPR provides a ready example.

    President Carter first submitted the ICCPR and the CERD to the Senate for advice and consent in February of 1978 (along with the International Covenant on Economic, Social and Cultural Rights and the American Convention on Human Rights, neither of which the United States has since ratified). In doing so, he emphasized this view:

    The great majority of the substantive provisions of these four treaties are entirely consistent with the letter and spirit of the United States Constitution and laws. Wherever a provision is in conflict with United States law, a reservation, understanding or declaration has been recommended. The Department of Justice concurs in the judgment of the Department of State that, with the inclusion of these reservations, understandings and declarations, there are no constitutional or other legal obstacles to United States ratification.... By giving its advice and consent to ratification of these treaties, the Senate will confirm our country's traditional commitment to the...

To continue reading